I clerked for Judge Mikva from 1989-1990, and have been his mentee, friend, and fan for the quarter of century that has followed. There was no kinder man or genuine patriot. Though I mourn his passing terribly, it is fitting that he left us on the 4th of July. The President’s tribute and those of many others capture the extraordinary impact that he had on everyone fortunate enough to know him. I’m adding my own small tribute below from a speech I gave to the ABA at a dinner honoring him with the Thurgood Marshall Award.
I’ve been asked to say a few words on behalf of all of Judge Mikva’s law clerks. Just to be clear about this, Judge Mikva did not ask me to speak for his law clerks. And the law clerks did not ask me to speak for them either. In fact, I’m fairly sure that, neither the Judge nor any one of them would want me to be speaking here tonight for them: but for different reasons. Judge Mikva would never ask one of us to speak because he says we are like his children. He could not pick just one among us, but he couldn’t stand to have to listen to all of us either. My fellow clerks, on the other hand, have a different reason. Each of us is privately convinced that we are, in fact, Ab’s favorite.
We have tables of Mikva clerks here tonight, including clerks who have flown here from their homes in Europe or who left vacations from across the Country to celebrate Judge Mikva.
At the presentation of his portrait in the DC Circuit five years ago, Judge Mikva, characteristically, talked about his clerks. “Judges,” he said, “never get over their loyalty to their clerks . . . I felt like I was adding three new members to my family every year, already potty-trained (for the most part), and all tuitions paid.” We’ve all been grateful to Judge Mikva ever since for not revealing which of us were apparently not fully potty-trained. But being a law clerk really has been like being a member of Ab and Zoe’s family and in the years since it has given each of us a glimpse of what his daughters Laurie, Mary, and Rachael have experienced. What it means to live in both the light and the shadow of a great and good man.
Like kids, we all have our favorite memory, and we all have our different stories to tell about Judge Mikva. But we emailed each other before this event to collect some of those things that have made us all Mikvaphiles, and a few general themes emerged.
We have all enjoyed the experience of being former clerks, and having a kind and generous dad. He has helped us find jobs, he has helped our significant others find jobs, he has sworn us into the bar, he’s performed at our weddings (without charge), he calls us (well, he calls us back), he writes us (back), he dotes on the children that we bring by to see him, he supports our causes, he revels in our accomplishments, and he offers real comfort and perspective to us when we have disappointments.
We also got to enjoy seeing his imperfections up close. No man is a total hero to his valet. Several of us recall that, at least during his court years, Judge Mikva was not that great a dresser. Sometimes we thought he was wearing a particular outfit because he was about to go play golf. But, you know, . . . .he wasn’t. Eventually we learned his golf outfits were much worse. And for those rare times that he did go golfing: Tip O’Neill probably said it best: Ab Mikva was a man with far greater skill on the floor of the congress than with a putter in his hand.
We got to see his expectations, and to learn from his being so demanding. Of course Judge Mikva wanted us to get the law right, to read the cases carefully, to produce complete and timely drafts. But that was just the starting point. On top of that Judge Mikva wanted brevity. His favorite reaction to most draft opinions was, “if it were half as long, it would be twice as good.” He also didn’t believe in footnotes which he considered intellectual cheating: if it is important enough to say, you should say it in the text where people might actually read it. Judicial opinions should be long enough, he said, to cover the subject, but short enough that they will actually be read. He was a stickler about grammar and punctuation. One time he’d had a draft opinion come back from then-Judge Ruth Bader Ginsburg who had sat on a panel with him. She had marked up the draft with some bright red edits where a modifier was misplaced twice, the series comma rule had been serially breached, and to everyone’s horror a semi-colon had been used instead of a colon. This incident led to a new verb being invented in chambers. Judge Mikva has us grab every other opinion we were working on and “Ginsburg” it, to make sure it was utterly uncorrectable. Finally, Judge Mikva demanded style. His opinions contained words not normally found in judicial opinions or any opinions for that matter: like “wastrel.” But style was something that usually Judge Mikva had to supply himself. Every clerk has a story about an opinion they drafted where Judge Mikva had kept a good deal of what they wrote but added some thoughts here and there, and sure enough the only parts ever quoted were the lines he’d written.
We learned integrity. As a Judge, Judge Mikva believed that you do what the law requires, not what is popular, and you expect and accept all criticism with grace and renewed determination. This was a characteristic that he’d had his whole life, and so it was no surprise that he brought it to the bench. Of course, it was not a trait that would necessarily please everyone. In fact, Judge Mikva started his political career near here, in the Hyde Park district, being Mayor Daley’s least popular legislator in Mayor Daley’s Chicago – a title not easily won. He was elected, but not as a member of the Chicago Democratic Machine, but as its greatest critic. As a reward for that fine independent streak, the first Mayor Daley, redrew the electoral districts and gerrymandered Judge Mikva right out of his congressional seat. So Judge Mikva did what he did best. He just became more independent. He moved up to the Republican north shore in Evanston and ran from there. And he won again. Having pulled off this miracle with a precious few Republican votes, he was advised that he needed to play it safe, and not lose their support. And so, to avoid rocking the boat, Judge Mikva played it very safe by dedicating the next two years to pushing through gun control laws and calling the NRA the nation’s “street crime lobby.” The NRA thanked him by pouring a million dollars every election thereafter to unseating him.
On the bench, it was the same thing. Judge Mikva was not afraid to have his decisions reconsidered en banc, or reversed by the Supreme Court. In fact, some of his fondest memories were of the cases that had the shortest life span. Including his decision to invalidate “Don’t Ask, Don’t Tell.” Mikva clerks were famous for being recused from a good share of the Supreme Court’s docket. Because Judge Mikva’s view was that there is always power in truth. Although truth and justice may encounter occasional setbacks, we just need to keep speaking them — society will inevitably be drawn in their direction.
And we learned a sense of fun and collegiality. That our ideological adversaries need not be our enemies. After he defeated John Porter for his seat in Congress, Mr. Porter said “Judge Mikva stood up for what he believed in and forcefully advocated for it. People respected him for that.” I had the odd, and I think only, experience of going from clerking for Judge Mikva to going to clerk for Chief Justice Rehnquist. They had known each other for many years going back to when they’d both clerked at the Supreme Court themselves. So, on the last day of my clerkship, Judge Mikva stopped in and wished me luck on my up-coming clerkship, and said he had a present for me to bring to the Chief. And he handed me a copy of the Constitution. Then he winked and told me to give it to the Chief, because — as he put it — “I don’t think the Chief’s ever read it.” He promised me the Chief would find this funny. So, I gave the Constitution to the Chief, who looked at and said: “I suppose Ab thinks I’ve never read it.” I said, “well yeah, I think that was his point.” And the Chief smiled: “Well, you know, Ab Mikva and I disagree about the meaning of every amendment to the constitutional, except the third amendment, about quartering soldiers. And that’s just because it’s never come up.”
Finally, we’ve learned humility from Judge Mikva. It is humbling enough to have your dad be a person who was editor in chief of the law review, clerked for the supreme court, ran his own law practice, served in both the state and federal legislature including five terms in Congress, was the Chief Judge of the DC circuit, the drafter of numerous eastern European constitutions, the legal advisor to the President of the United States, a professor at the University of Chicago, a brilliant speaker, a devastatingly good writer, a wonderful family man, and a half-decent golfer. Yeah that will humble you. But even more, we are humbled not by all the things he has done, but by how he has done them. My friend and fellow clerk, Ivan Fong, said it best when he quoted Archbishop Desmond Tutu to describe what Ab is like. He said there is a rare quality of humanness: “gentleness, putting yourself out on behalf of others, being vulnerable. It recognizes that my humanity is bound in yours, for we can only be human together.”
I can not begin to sum up all that the law clerks would want to say about Judge Mikva, but fortunately their lives speak for themselves. Part of Judge Mikva’s legacy lies not simply in the life he has led and his devotion to public service, but also in the lives of public service he has launched. His clerks reflect that vast range of his interests and personality. The first amendment advocate, the advocate for workers rights, the lawyer, the professor, the public servant, the judge, the legislator, the loving parent, the counselor to presidents and justices and foreign leaders, the problem solver. Among his 39 clerks are world renowned academics including Prof. Gerry Neuman at Columbia, Supreme Court Justice Elena Kagan, the Chair of the FCC, Julius Genachowski, legislators, Ambassadors, leaders of the bar, and heads legal services agencies.
So let me end not with our words, but something Justice Brennan wrote in a note to Judge Mikva that accompanied a gift, or a photo. One of our clerks saved a copy of it. And it perhaps best sums up how we all feel about Judge Mikva:
“To Abner Mikva
Dear, dear friend,
Fellow valiant in the pursuit of freedom and justice.”
– Jeffrey Bleich